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[2019] ZALCJHB 94
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PSA obo Fritz v Human Science Research Council and Others (JR2405/15) [2019] ZALCJHB 94 (9 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR2405/15
In
the matter between:
PSA
OBO LEE-ANN
FRITZ Applicant
and
HUMAN
SCIENCE RESEARCH COUNCIL First
Respondent
COMMISSIONER
EUGENE MUTILENI
Second Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION Third
Respondent
Heard:12
July 2018
Delivered
9 May 2019
JUDGMENT
MOSEBO,
AJ
Introduction
[1]
This is an
application brought in terms of section 145(1)(a) of the Labour
Relations Act
[1]
(the Act). The
applicant seeks to review and set aside the arbitration award handed
down by the second respondent (the commissioner)
on 21 September 2015
under case number GAWT10199-15.
[2]
In his arbitration award, the commissioner had found that the first
respondent
had not committed an unfair labour practice against the
applicant and therefore had dismissed the applicant's claim with no
order
as to costs. The review application is opposed by the first
respondent.
[3]
The review application was two weeks and two days late and there was
an
application for condonation which was opposed by the first
respondent on the basis that there was no adequate explanation and no
prospects of success. I granted condonation on the basis that the
period of delay was relatively short, the first respondent has
not
suffered any prejudice and in my view the review application has
reasonable prospects of success.
Factual
Matrix
[4]
The applicant was employed by the first respondent on 1 August 2006
as
a personal assistant to the first respondent's Chief Financial
Officer, a position that was at the level of assistant director and
earned an annual salary of R405 916.48. For reasons that are not
relevant to this application, during August 2013, the applicant
lodged a grievance in terms of which she requested the first
respondent to find an alternative placement for her.
[5]
The
possibility of placing the applicant in the position of junior
journalist in the communication unit was discussed amongst the
first
respondent's officials. The correspondence amongst the first
respondent's officials indicates that the subject line of the
emails
concerned the 'redeployment' of the applicant.
[2]
In the midst of all these, on or about 13 September 2013, Ms Mapotlo
Ledwaba (Ms Ledwaba) sent an e-mail to other officials of
the first
respondent informing them that there was a vacancy that appeared to
be a good fit for the applicant in the communication
unit but the
only challenge was that the said position's salary was at R245 000.00
when the applicant's salary was at R405 000.00.
She also indicated
that the communication unit did not have that kind of a budget.
[6]
In the same
e-mail, Ms Ledwaba specifically requested assistance about the
difference in salary from Mr Udesh Pillay (Mr Pillay)
but she also
pointed out that the transfer and redeployment policy guaranteed the
salary of a redeployed employee for a period
of 12 months and
thereafter the salary of the new position should kick in.
[3]
However, the applicant was not copied on this e-mail and it is not
apparent from the record if Pillay ever responded and/or provided
any
assistance to Ms Ledwaba on the salary issue.
[7]
On or about
18 November 2013, the communication unit issued an internal
advertisement of the junior journalist/online writer in
the corporate
communications and stakeholder relations (RIA), a three year contract
based in Pretoria.
[4]
The
advertisement aforesaid did not mention the salary applicable for
that post but merely stated that the fist respondent offered
attractive, market related packages depending on experience and
qualifications.
[8]
The
applicant applied for the advertised post and was interviewed. On or
about 04 February 2014, Mr Julian Jacobs (Mr Jacobs) wrote
an
internal memorandum to Professor Olive Shisana (the CEO) recommending
the applicant to be appointed as the online journalist
in line with
the budget and the closest fitting cost to company on the salary
scale with effect from 01 March 2014.
[5]
[9]
In his memorandum, Mr Jacobs recorded that this position is a
contract
position with a salary of more or less R250 000.00 CTC and
that the applicant was fully aware of that fact. In her testimony,
the
applicant disputed that she was aware that the salary for this
position was R250 000.00 CTC. She also called Ms Kim Trollip (Ms
Trollip) who was part of the interview panel with Mr Jacobs and Ms
Trollip testified that the salary for this position was not
discussed
at the interview. Ms Trollip's testimony contradicted Mr Jacobs
memorandum to the CEO dated 04 February 2014. Mr Jacobs
was not
called to testify at the arbitration.
[10]
On the same
date, 04 February 2014, Dr Themba Masilela (Dr Masilela) indicated
his support for the recommendation made by Mr Jacobs
to appoint the
applicant provided that there was confirmation that the applicant
accepted a lower CTC than her current position.
[6]
There is no evidence to show that this confirmation was sought and/or
received from the applicant. On or about 14 February 2014,
the
applicant wrote an email to Ms Ledwaba indicating that she could only
accept the offer of transfer to this position if she
was transferred
on her current salary because the first respondent was willing to
transfer her to another position, Personal Assistant
to ED:
Management Support on her current salary level. She requested the
first respondent, through Ms Ledwaba, to make an attempt
to transfer
her into the post of junior journalist on her current salary
scale.
[7]
[11]
Ms Ledwaba
responded by stating that the applicant was not being transferred to
communication unit but communication unit had advertised
a post with
its terms and conditions and the applicant had applied for that
position.
[8]
It appears that the
terms and conditions that Ms Ledwaba was referring to as at 14
February 2014 are the terms and conditions set
out in the
advertisement. But, as stated, the advertisement did not mention a
specific salary for the post.
[12]
On or about
26 March 2014, Mr Mbulelo Ntusi (Mr Ntusi) wrote an email to Ms Priya
Singh requesting guidance as there was going to
be an arbitration at
the Commission for Conciliation, Mediation and Arbitration (the CCMA)
the following day.
[9]
In his
email, Mr Ntusi pointed out that according to the transfer and
redeployment policy, especially where the employee had initiated
a
transfer on the grounds of a relationship breakdown, the first
respondent has to 'protect' the employee's existing compensation
for
a year. He also pointed out that the only option on the table was the
RIA option although there was an issue of salary shortfall.
He then
requested funding for the R150 000.00 difference in respect of the
position in RIA for about a year in order to have a
mandate for the
following day's arbitration.
[10]
[13]
Ms Singh
requested approval from the CEO who duly approved same and thereafter
Ms Singh advised Mr Ntusi that the additional R150
000.00 was for one
year only and she also instructed HR to insert a
proviso
in the letter to the effect that the salary is only maintained for a
year and will be reviewed at the end of the year.
[11]
There is no evidence showing that these e-mails and/or the
discussions between Ms Singh and Mr Ntusi were brought to the
applicant's
attention.
[14]
On or about
28 March 2014, the applicant was furnished with an offer of
employment letter dated 27 March 2014 appointing her as
a junior
journalist/online writer at the rank of Assistant Director with
effect from 01 April 2014.
[12]
It is specifically stated that the said letter of appointment and the
general conditions of employment of the first respondent
constitute
the applicant's contractual relationship with the first respondent
and that where the two documents conflict the letter
of appointment
will prevail to the extent that it is more favourable. It is further
stated that where both letter of appointment
and the general
conditions of employment are silent, the applicable legislation will
apply.
[13]
[15]
The
employment was for a fixed term contract commencing from 01 April
2014 terminating on 31 March 2017 and subject to 12 months'
probation. Paragraph 10.1 provides that the employee's total cost to
company package at appointment will be R405 916.48 and paragraph
10.2
provides that the salary is guaranteed for a period of 12 months only
as per the transfer and redeployment policy. It is immediately
apparent that paragraph 10.2 was added at the instance and
instructions of Ms Singh in accordance with her email to Mr Ntusi
dated
26 March 2014.
[14]
[16]
The introduction of paragraph 10.2 raises a number of issues that had
to be resolved at
the arbitration mainly whether the applicant
applied for an advertised post and was appointed in accordance with
the advertisement
or was she simply redeployed in accordance with the
transfer and redeployment policy. This was important because normally
advertisements
are handled in terms of selection and recruitment
policies of the employer but transfers and redeployment are handled
in terms
of a different policy which in this case was the transfer
and deployment policy. I will return to this issue.
[17]
However, it
is significant to note that the transfer and redeployment policy, in
particular paragraph 5.8 thereof, does not mention
a salary and/or
what will happen at the end of the 12 month period referred to in
clause 10.2 of the letter of employment.
[15]
In other words, paragraph 5.8 of the transfer and redeployment policy
is silent and also clause 10.2 of the letter of appointment
is silent
on what will happen to the applicant's salary when the 12 month
guaranteed period expires. In her testimony the applicant
stated that
Mr Ntusi and Mr David Letaba (Mr Letaba) made her to understand that
nothing would happen after the 12 months and that
is why there was no
indication that her salary would change.
[16]
Messrs Ntusi and Letaba were not called to testify at the
arbitration.
[18]
On or about
01 April 2015, the CEO wrote a letter to the applicant indicating
inter
alia
that the applicant's cost to council remuneration package would
increase from R434 330.63 to R458 218.81 per annum.
[17]
On 17 April 2015 and within two weeks of the CEO's letter, Dr
Masilela wrote a letter to the applicant referring to the applicant's
letter of appointment dated 27 March 2014 as a letter of
redeployment.
[18]
In this
letter Dr Masilela indicated that as outlined in the letter, the
applicant's remuneration of R405 916.48 was only guaranteed
for a
period of 12 months i.e. 01 April to 31 March 2015 and in light of
the above agreement, the applicant was reminded that her
current
remuneration would reduce to R294 800.00 which is the remuneration of
that post and the change was effective from 01 April
2015. It is
immediately apparent from Dr Masilela's letter that there was no
clarity on whether the applicant was appointed or
redeployed to the
new position of junior journalist/online writer. Therefore, a
determination of this issue was crucial at the
arbitration.
[19]
On 22 April
2015, the applicant lodged a grievance.
[19]
This could not be resolved and on 13 August 2015, the applicant
referred a dispute to the CCMA for conciliation but this was also
unsuccessful and the dispute was then referred to arbitration. The
arbitration was scheduled for hearing on 11 September 2015 and
the
commissioner handed down his arbitration award on 21 September 2015
wherein he found that the first respondent had not committed
an
unfair labour practice against the applicant.
Assessment
[20]
The
arbitration award is attacked on various grounds but mainly on ground
that the commissioner failed to apply the general principles
of the
law of contract in particular the parol evidence rule. In
Denel
(Pty) Ltd v Gerber
[20]
the Labour Appeal Court (LAC), per Zondo JP (as he then was)
described the parol evidence rule as follows:
"The rule which is
generally referred to as parol evidence rule is to the effect that
when a contract has been reduced to writing,
the writing is, in
general, regarded as the exclusive memorial of the transaction and in
a suit between the parties no evidence
to proof its terms may be
given save the document or secondary evidence of its contents, nor
may the contents of such document
be contradicted, altered, added to
or varied by parol evidence."
[21]
[21]
The
commissioner referred to the offer of employment signed by the
applicant on 28 March 2014 in particular clause 10.2 thereof.
He then
recorded that it was the applicant's submission that clause 10.2 does
not translate to a reduction of her salary after
a period of 12
months
[22]
. The commissioner
then referred to the budget in the sum of R250 000.00
[23]
and retorted as to why the salary was being guaranteed for a period
of 12 months in line with the policy dealing with transfer
and
redeployment. The commissioner indicated that clause 10.2 is
literally similar to clause 5.8 of the transfer and redeployment
policy and that the said policy as well as the recruitment policy
both sit with the HR department which happened to be the custodian
of
those policies.
[24]
[22]
The commissioner concluded that the applicant's denial that this
measure taken by the respondent
to assist her during the transitional
period is not probable because the arrangement is captured in the
policy of the respondent
and succinctly states that its intention is
to assist employees who find themselves in this space.
[23]
The
arbitration award is not clear as to which period is being referred
to as the 'transitional period'. However, it is apparent
from the
award
[25]
that the
commissioner failed to consider that even though the applicant had
initially requested to be redeployed and the process
of redeployment
had commenced, on or about 13 September 2013, Ms Ledwaba wrote an
e-mail to Messrs Ntusi and Pillay pointing out
the challenge she was
faced concerning the fact that the junior journalist post in the
communication unit was at R245 000.00 CTC
when the applicant's salary
was at R405 000.00 CTC.
[26]
In
that e-mail, Ms Ledwaba referred to the 12 months period contained in
clause 5.8 of the transfer and redeployment policy and
indicated that
at the end of the said period, the correct salary would kick in. She
then specifically requested assistance from
Mr Pillay on how to
address the difference in salary.
[24]
The commissioner failed to consider that there was no evidence
presented at the arbitration
to show that Mr Pillay reverted to Ms
Ledwaba. In fact, it appears from the record that Ms Ledwaba's e-mail
dated 13 September
2013 was the last e-mail concerning the
redeployment process. This was the only e-mail presented at the
arbitration which explained
that at the end of the guaranteed 12
months' period, the salary of the deployed employee would drop to the
salary commensurate
with the new position, however, the applicant was
not copied on this e-mail.
[25]
The commissioner failed to consider that there was no evidence
presented at the arbitration
to show that the applicant was made
aware that her salary would drop to R294 000.00 at the end of the 12
months period. The other
correspondence that touched on this issue is
Ms Singh's email dated 26 March 2014 wherein she instructed HR to
insert a clause
in the letter of appointment to the effect that the
salary would only be maintained for a year and that it would be
reviewed at
the end of the year. However, that email also does not
state that the applicant's salary would be reviewed downwards and it
was
also not brought to the applicant's attention.
[26]
It is apparent from the record that following Ms Ledwaba's e-mail
dated 13 September 2013,
the first applicant placed an internal
advertisement of the same post that was referred to in Ms Ledwaba's
email, but the salary
for this position was not mentioned in the
advertisement save to state that the salary would be market related
and commensurate
with experience and qualifications.
[27]
It is
common cause between the parties that the applicant applied for the
said advertised post and thereafter she was interviewed
and
appointed.
[27]
In my view,
this means that this was a new appointment made in accordance with
the recruitment processes of the first applicant.
In other words, it
was not a transfer or a redeployment. It follows therefore that the
transfer and redeployment policy was not
applicable in this matter.
This view is fortified by the fact that on 04 February 2014, Mr
Jacobs wrote an internal memorandum
to the CEO recommending that the
applicant be appointed to the recently advertised position after she
was interviewed on 27 January
2014 by a panel of four members.
[28]
This view
is further fortified by Ms Ledwaba in her response to the applicant's
e-mail dated 14 February 2014
[28]
in which the applicant had indicated to Ms Ledwaba that she could
only accept the offer if she were to be transferred to the position
of online writer on her current salary due to the fact that the first
respondent was willing to transfer her to another position
with her
current salary level. In her response to the applicant's e-mail, Ms
Ledwaba made it clear that the applicant was not being
transferred to
communication unit as the post was advertised with its terms and
conditions and the applicant applied for that position.
[29]
Ms Ledwaba's view in this regard was correct in that the issue of
transfer and/or redeployment
had ended with her e-mail dated 13
September 2013 and/or in particular on 18 November 2013 when the
vacant post was advertised.
It follows therefore that from about 18
November 2013, when the post was advertised internally, the parties
were, then, engaged
in the process of selection and recruitment for a
new appointment, as opposed to a transfer or a redeployment.
[30]
It is
apparent from the arbitration award that the commissioner
misconstrued evidence in this regard in that the commissioner
referred to clause 10.2 and to the exchange of the emails between the
applicant and Ms Ledwaba as if the applicant was aware of
the
existence of clause 10.2 at the time she sent an email dated 14
February 2014 to Ms Ledwaba.
[29]
The correct state of affairs is that in her email dated 14 February
2014, the applicant was simply requesting to be transferred
with her
salary to the new position as she had another opportunity to be
transferred with her salary to another position. In her
response Ms
Ledwaba merely corrected the misapprehension under which the
applicant was labouring that she was been transferred,
as the
position she had applied for was not a transfer but an advertised
position with its own terms and conditions as set out
in the
advertisement.
[31]
The e-mail
from Ms Ledwaba did not at all address the applicant's submission
made at the arbitration that the appointment letter
in particular
clause 10.2 does not indicate that her salary would be reduced at the
end of the 12 month period. In my view, the
commissioner's reliance
on Ms Ledwaba's email dated 14 February 2014 as a foundation to
conclude that the applicant was aware of
the implications of clause
10.2 in particular that her salary would be reduced at the end of the
12 month period is, with respect,
unreasonable and no reasonable
decision maker could reach such a decision
[30]
.
Further, clause 5.8 of the transfer and redeployment policy also does
not provide that the applicant's salary would be reduced
at the
expiry of the 12 month period, let alone to R294 000.00.
[32]
The
commissioner also indicated
[31]
that the applicant conceded under cross-examination that she had read
the policy on transfer and redeployment which contains a
similar
provision which guarantees a salary for a period of 12 months for
employees who accepted positions on a lower salary scale.
The
commissioner stated that it was difficult to comprehend why the
transfer and redeployment policy should not be applicable to
the
applicant as it has always sat with the HR department even before her
appointment to the new position
[32]
.
It is apparent from these paragraphs that the commissioner's
difficulty to comprehend the matter was caused by the fact that he
laboured under a misapprehension that the applicant had accepted a
position with a lower salary when there was no evidence presented
at
the arbitration to support a finding that the applicant had accepted
a position with a lower salary and/or that she was made
aware that
she had accepted a position with a lower salary.
[33]
The
applicant testified at the arbitration, which testimony had been
corroborated by Ms Trollip, that the issue of the salary was
not
discussed at the interview. The employer did not call any witness to
counteract that version. It is also significant that on
04 February
2014, Dr Masilela supported Mr Jacobs' recommendation to appoint the
applicant provided that there was a confirmation
that the candidate
accepted the lower CTC than her current position.
[33]
There was no evidence presented at the arbitration to establish that
this confirmation was sought and/or received from the applicant.
In
my view, the commissioner's conclusion that the applicant was aware
that her salary would be reduced at the end of the 12 months
period
is not supported by any evidence and is therefore unreasonable.
[34]
On the
other hand, clause 1.1 of the applicant's letter of appointment
[34]
provides that she would be employed at the rank of an assistant
director and that is the same rank the applicant held in her previous
position and clause 10.1 provided that the applicant's salary was
exactly the same as it was in her previous position. Further,
clause
10.2 does not provide that the applicant's salary would be reduced at
the end of the 12 month period. The applicant was
cross-examined at
length on this issue and her answer was that clause 10.2 does not
indicate salary reduction at the end of 12
months.
[35]
This view was not contradicted.
[35]
When asked
whether she sought clarity on what was going to happen after 12
months, the applicant stated that she was made to understand
that
nothing would happen after 12 months and that is why there is no
indication in her contract that her salary would change.
She
testified that this was an oral undertaking made to her at the CCMA
by Messrs Ntusi and Letaba.
[36]
This evidence was not disputed by the first respondent. Instead, the
applicant was asked if she would call Messrs Ntusi and Letaba
to
corroborate her version as she did not have any documentary
evidence.
[37]
The record
indicates that the applicant stated that she did not have any written
proof because they had a verbal discussion and
that she would not
call any of the two gentlemen.
[38]
[36]
On or about
28 March 2014, the applicant was furnished with an offer of
employment dated 27 March 2014.
[39]
It is significant that this letter is not titled 'transfer' or
'redeployment' but 'offer of employment'. The first introduction
paragraph states that the applicant is being offered 'an appointment'
with effect from 01 April 2014.The second introduction paragraph
states that this letter of appointment and the general conditions of
employment of the first respondent constitute the applicant's
contractual relationship with the first respondent and where the two
documents conflict, the letter of employment will prevail
to the
extent that it is more favourable. It further states that where both
the letter of appointment and the general conditions
of employment
are silent, then, applicable legislation would apply.
[37]
It is apparent from the aforegoing that on 28 March 2014, when the
applicant signed the
offer of employment, a new contract of
employment was created between the parties and the second
introduction paragraph aforesaid
indicates that the said letter of
appointment constitutes a contract and also directs how the said
contract is to be interpreted
and/or applied. It follows therefore
that in determining the issues in dispute between the parties in this
matter, the commissioner
ought to have paid particular attention to
the rights and obligations of the parties as set out in the contract
of employment.
[38]
I have
doubt on whether the parol evidence rule applies in this matter in
that there is no clause in the letter of appointment stating
that the
said letter constitutes the sole agreement between the parties. The
second introduction clause indicates that the letter
of employment
and also the general conditions of employment constitute the
contractual relationship between the parties. I am of
the view that
when interpreting and/or applying clause 10.2 of the letter of
appointment, the commissioner misdirected himself
and considered
irrelevant issues when he took into account the budget in the sum of
R250 000.00
[40]
in that there
was no evidence presented before him to show that the said budget had
been brought to the applicant's attention so
as to reach a conclusion
that the applicant was aware of the said budget. The applicant
testified that she was not aware of the
budget for this position and
that she saw it for the first time from the evidence presented at
arbitration because budget approvals
go to HR and not to the employee
who applies for the advertised position. This was not disputed by the
first respondent.
[41]
[39]
Even though Mr Jacobs' internal memorandum dated 04 February 2014 was
included in the bundle
and it indicated that the applicant was aware
of the budget concerning this post, the fact that the first
respondent did not call
Mr Jacobs is significant in that in her
testimony, the applicant disputed that she was aware of the budget
regarding this post
and she called Ms Trollip who was part of the
panel that interviewed her to corroborate her version. In this
instance, the applicant's
version was the only one available before
the arbitrator.
[40]
It follows therefore that based on the evidence presented at the
arbitration, the commissioner
made a decision which no reasonable
decision maker could reach when he concluded that the applicant's
denial of knowledge of the
budget is not probable.
Conclusion
[41]
In conclusion, I find that there was sufficient evidence before the
arbitrator to show
that the applicant applied for a new position and
was duly appointed in the new position as opposed to being deployed
in terms
of the transfer and redeployment policy. At the time she
made the application, the applicant occupied the rank of an assistant
director and she was also appointed at the rank of an assistant
director. Paragraph 10.1 of her letter of appointment indicated
her
salary as R405 916.00. Paragraph 10.2 provided that her salary would
be protected for a period of 12 months per transfer and
redeployment
policy but both paragraph 10.2 and paragraph 5.8 of the transfer and
redeployment policy do not provide that the applicant's
salary will
be reduced at the expiry of the 12 month's period. I also find that
there was no evidence presented at the arbitration
to show that the
applicant was informed that the position she was applying for was
budgeted at R250 000.00 nor was she informed
that her salary would be
reduced at the end of the expiry of the 12 months period.
[42]
In my view, there was confusion on the part of the first respondent's
officials and this
confusion was created when Mr Pillay issued the
instruction to include a clause guaranteeing the applicant's salary
for 12 months
as if the applicant was redeployed when actually she
was not redeployed. The confusion was exacerbated by the fact that
the clause
guaranteeing the applicant's salary for 12 months does not
stipulate what would happen at the expiry of the said 12 months
period.
This confusion manifested itself when the applicant was
furnished with a letter of appointment, followed by a letter from the
CEO
entitled 'annual cost of living adjustment' and soon thereafter
followed by Dr Masilela's letter entitled 'redeployment to RIA'.
The
applicant's version presented at the arbitration was not
contradicted.
[43]
Based on the evidence presented at the arbitration, I find the
commissioner to have reached
decisions that could not have been made
by a reasonable decision maker and therefore his award falls to be
reviewed and set aside.
[44]
I do not
think that it would be fair to revert this matter for a hearing
de
novo
given
the fact that it is a very old matter.
[42]
I am also of the view that there is an on-going relationship between
the applicants and the first respondent herein and that it
would be
fair and equitable if each of the parties pay its own costs.
[45]
In the premises the following order is made:
Order
1.The application for
condonation is granted;
2. The second
respondent's award dated 21 September 2015 is reviewed and set aside;
3.Paragraphs 58 and 59 of
the arbitration award are substituted with the following:
"The respondent,
Human Sciences Research Council (HSRC) has committed an unfair labour
practice against the Applicant, Lee-Ann
Fritz in terms of the
provisions of section 186(2)(a) of the Labour Relations Act."
4. The HSRC is ordered to
pay Lee-Ann Fritz the difference of her salary between R458 218. 81
and R294 000.00 (including any applicable
increments) calculated from
01 April 2015 to date.
5.There is no order as to
costs.
________________
Mosebo AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
applicants: Ms P.
Govender of Macgregor Erasmus
For
First Respondent:Ms J. Ewang of Hogan Lovells
[1]
Act 66 of 1995, as amended.
[2]
Record of the proceedings at p. 36 – 38.
[3]
Record of the proceedings at p. 37.
[4]
Record of the proceedings at p. 69.
[5]
Record of the proceedings at p. 41 – 42.
[6]
Record of the proceedings at p. 42.
[7]
Record of the proceedings at p. 89.
[8]
Record of the proceedings at p. 89.
[9]
Record of the proceedings at p. 40.
[10]
Record of the proceedings at p. 40.
[11]
Record of the proceedings at p. 39.
[12]
Record of the proceedings at p. 44 – 51.
[13]
See: Para 2 of the letter of appointment.
[14]
Record of the proceedings at p. 39
[15]
Para 5.8 provides that
'if
an employee elects to accept an offer of redeployment at a lower
level, his or her existing compensation level will continue
to be
protected for a period of twelve months
.'
[16]
Transcript p 80 ll 1 – 10.
[17]
Record of the proceedings at p. 54.
[18]
Record of the proceedings at p. 75.
[19]
Record of the proceedings at p. 71.
[20]
[2005] 9 BLLR 849 (LAC).
[21]
Id fn 20 at para 9.
[22]
Para 47 of the arbitration award.
[23]
P. 33 of Bundle A.
[24]
Para 48 of the arbitration award.
[25]
Paras 47 and 48 of the arbitration award.
[26]
Record of the proceedings at p. 37.
[27]
Transcript p. 67 ll 15-20; p. 68 ll 5-15; p. 88-91.
[28]
Record of the proceedings at p. 89.
[29]
Paras 54 and 55 of the arbitration award.
[30]
Test for the review of arbitration awards was set out in the matter
of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC).
[31]
In paragraph 50 of the arbitration award.
[32]
In paragraph 51 of the arbitration award.
[33]
Record of the proceedings at p. 42.
[34]
Record of the proceedings at p. 44.
[35]
Transcript p. 78-79.
[36]
Transcript p. 79-80.
[37]
Transcript p. 81.
[38]
Transcript p. 82 – 83.
[39]
Record of the proceedings at p. 44.
[40]
P. 33 of Bundle A
[41]
Transcript p. 95 ll 10-20.
[42]
See:
National
Commissioner of Police and Another v HarrI NO and Others
(2011) 32 ILJ 1175 (LC).